- March 18, 2021
- Posted by: Fakhoury Global Immigration
- Category: U.S. Alerts
DHS Rescinds Public Charge Rule, Withdraws Appeals of Injunctions Blocking It
The Department of Homeland Security (DHS) rescinded regulations resulting from a final rule issued in August 2019 that was vacated by a federal district court. Under the now-rescinded rule, the government could deny applications for green cards, temporary nonimmigrant status, and naturalization if the government found they relied on—or were at risk of relying on—public benefits. The Biden administration also withdrew the federal government’s appeals of injunctions blocking the DHS public charge rule. However, 11 Republican-led states said that they plan to ask courts to continue the litigation.
USCIS will issue updated guidance on affected forms. In the interim, USCIS said it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Forms I-129, I-129CW, I-539, or I-539A based on whether the public benefits questions (Forms I-129 (Part 6), I-129CW (Part 6), I-539 (Part 5), and I-539A (Part 3)) have been completed or left blank. Those issued Requests For Evidence (RFEs) and Notices of Intent to Deny (NOIDs) will not need to submit information or documents solely as required by the public charge rule. However, all other requests raised in the RFE/NOID must be answered.
- “DHS Secretary Statement on the 2019 Public Charge Rule,” USCIS, Mar. 9, 2021, https://www.uscis.gov/news/news-releases/dhs-secretary-statement-on-the-2019-public-charge-rule
- Final Rule: Inadmissibility on Public Charge Grounds; Implementation of Vacatur, https://bit.ly/3cuVnJG · USCIS guidance, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge · Joint Stipulation to Dismiss, DHS v. State of New York, https://bit.ly/3cspEsn
- “States Seek to Take Over Defense of ‘Public Charge’ Rule,” Reuters, Mar. 11, 2021, https://www.reuters.com/article/immigration-publiccharge/states-seek-to-take-over-defense-of-public-charge-rule-idUSL1N2L93DH
State Dept. Releases Guidance for Those Previously Refused Visas Under Travel Bans
On March 10, 2021, the Department of State issued guidance in response to President Biden’s signing of two proclamations on January 20, 2021, that ended travel bans on certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
Following the Department’s review, eligible immigrant visa applicants whose entry was refused previously under the travel bans and who did not qualify for waivers before January 20, 2020, may submit new visa applications. Those whose entry was refused under the bans and were determined not to qualify for a waiver on or after January 20, 2020, may request their local embassy or consulate to reconsider their cases within one year of the date of waiver refusal without submitting a new application or fee.
Nonimmigrant visa applicants whose entry was refused previously due to the travel bans and who did not qualify for waivers may submit new visa applications.
The Department can immediately process visa applications for eligible individuals from the affected countries. However, local U.S. embassies or consulates may not be able to schedule all affected applicants for visa interviews immediately due to COVID-19-related restrictions.
Applicants should consult the website of their nearest U.S. embassy or consulate to determine if their cases qualify for expedited processing.
- Rescission of Presidential Proclamations 9645 and 9983, Dept. of State, Mar. 10, 2021, https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html
USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos
U.S. Citizenship and Immigration Services (USCIS) announced on March 12, 2021, that it may reopen and/or reconsider adverse H-1B decisions on Form I-129, Petition for a Nonimmigrant Worker, that were made based on three rescinded policy memoranda. USCIS said it “will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.” The rescinded memos include:
- “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” HQ 70/6.2.8 [AD 10-24)] (Jan. 8, 2010)
- “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” PM-602-0157 (Feb. 22, 2018)
- “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” PM-602-0142 (Mar. 31, 2017)
USCIS made the rescissions in memoranda issued on June 17, 2020, and on February 3, 2021.
- “USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos,” USCIS, Mar. 12, 2021, https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos
- USCIS June 17, 2020, memorandum, PM-602-0114, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf
- USCIS February 3, 2021, memorandum, PM-602-0142.1, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf
ABIL Asks for Withdrawal of H-1B Lottery Rule Prioritizing Wages; DHS Delays Effective Date Until May 14
The Alliance of Business Immigration Lawyers (ABIL) formally submitted a comment asking the Department of Homeland Security (DHS) to withdraw its final rule prioritizing wages in adjudicating H-1B applications.
ABIL said the final rule “would unlawfully and unjustifiably give preference to workers who earn higher wages, despite the fact that these wages are drawn from limited federal data sources” that are “not designed for application to the H-1B visa program, and bear no relation to the value a highly skilled worker adds to the United States.” ABIL believes that because of the wide variety of occupational categories into which H-1B beneficiaries may fall, the use of wage data as a proxy for high skills and qualifications “will not accomplish the outcomes DHS desires” and instead “will unfairly discriminate against and burden law-abiding employers,” particularly small and medium-size businesses that will find the H-1B program unaffordable as a result.
ABIL also warned that the final rule is likely to “cause more work to be commissioned offshore” and thus undermine opportunities for U.S. workers along with the Biden administration’s desire that more work be performed in the United States.
On March 12, 2021, DHS delayed the effective date of the wage rule until May 14, 2021. DHS said the 60-day delay would allow the agency to “review any questions of fact, law, or policy.”
- Comment Submitted by Alliance of Business Immigration Lawyers, Mar. 10, 2021, https://www.regulations.gov/comment/USCIS-2020-0019-1279
- Notice delaying effective date of final rule, DHS, https://www.govinfo.gov/content/pkg/FR-2021-03-12/pdf/2021-05269.pdf
Lawsuit Challenges USCIS Rejections of H-1B Petitions Filed After October 1
The American Immigration Council (AIC) sued on March 11, 2021, in federal court on behalf of seven U.S. employers whose H-1B petitions were rejected. The lawsuit challenges U.S. Citizenship and Immigration Services’ (USCIS) “arbitrary and capricious refusal to accept timely and properly filed H-1B petitions” subject to the annual cap.
AIC said USCIS rejected the petitions filed after October 1 “simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1.” Based on this timeline,
AIC said, “USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer had to misrepresent the intended employment start-date by ‘back-dating’ the petition.” In fact, AIC noted, USCIS had accepted some with an employment start date after October 1 without issue.
- “Challenging USCIS’ Arbitrary Rejections of Petitions Filed After October 1,” American Immigration Council, https://www.americanimmigrationcouncil.org/litigation/challenging-uscis%E2%80%99-arbitrary-rejections-h-1b-petitions-filed-after-october-1 · Complaint, https://bit.ly/30DKhfF